The
State of Michigan does Harper Lee one better with its “Farm Kill”
Orders

There
were 20 of them, cute and innocent as could be. The farmer raised his
shotgun and pumped one shot after another into each one of them, killing
every last piglet, and their mothers too. This was heart-wrenching for
the farmer, but he knew he had no choice since the State of Michigan
was about to descend upon him with a SWAT-style team intending to arrest
him as a felon if any of his pigs were found alive on his property.
His crime? Harboring an animal that the State had designated as an “Invasive
Species.”[1]
And this farmer’s tragedy was not the only one to play out in
the State, there were thousands of others facing similar dilemmas.

The
Invasive Species Order

The
Michigan Invasive Species Order (ISO) that kick-started this series
of tragedies went into effect on April 1, 2012. Issued by the Michigan
Department of Natural Resources (MDNR) in December 2010, the ISO prohibited
all "feral" swine, even on private property.[2]
Unfortunately for those small family farmers breeding heritage pigs,
the ISO identified invasive-species pigs using incredibly vague and
common characteristics that would cover virtually all pigs and hogs.

As
opponents of the ISO have contended, “Pigs can be identified as
invasive – and thus eligible for slaughter – regardless
of how long they have been part of animal husbandry in Michigan. They
will be rounded up according to the color of their fur (black or striped),
their undercoat color (lighter than the topcoat), whether their tails
are straight or curly, and other arbitrary characteristics.”[3]

The
MDNR alleges that it has a feral-pig problem in the State; and heritage
breeds, which are raised outdoors in the Sun and with real soil beneath
their hooves in fenced-in spaces on family farms, are wrongly threatened
with elimination because they “might escape” and become
feral. Interestingly enough, less healthy and certainly less happy pigs
that are confined to concrete-floored pens and are treated like factory-line
commodities have been given a pass by the MDNR. Ironically, then, the
inbred “modern” pigs raised in factory farms are permitted
to live while the more genetically-diverse and old-fashioned breeds
are destroyed.

The
civil fines for violating the cited sections of the Invasive Species
Act can be daunting. They range from $1,000 to $20,000 per violation.
Kick in the threat of jail time where the authorities meet resistance
and you have a very motivating legal combination forcing men to shoot
their pigs.

Shakespeare
to Blame

On
one hand, it’s hard not to sympathize with those who don’t
want native species of animals wiped out through the thoughtless introduction
of other species. In 1988, the Eurasian Zebra Mussel was most probably
dumped out of bilge water into Lake St. Clair, one of the Great Lakes.
Today, they are everywhere, clogging pipes, fouling ship hulls throughout
the Great Lakes, and outcompeting and eliminating native mussels. Another
problem, the foreign Tiger Shrimp, has been spotted in the Gulf of Mexico
and along the U.S. East Coast in rapidly increasing numbers in the last
few years. These shrimp feed on, among other things, those shrimp native
to the Gulf.[4]
Some say the outcome of that inter-species battle, in the decades to
come, is already a foregone conclusion. Others say, pass the garlic
butter.

And
in 1890 and 1891, a Bronx resident, Eugene Schieffelin, and his cohorts
– with the addled notion that every bird mentioned in the works
of Shakespeare should be introduced into the New World – released
about 100 starlings from the Old World into Central Park. Today, starlings
in North America number more than 200 million!
Other bird species that compete for the same aviary ecological niches
have correspondingly declined.

A
Federal law, called the National Invasive Species Act, was passed in
1996 to try to augment existing controls for these problems.[5]
It simply reauthorized and amended the 1990 Non-indigenous Aquatic Nuisance
Prevention and Control Act, which dealt with water-borne species. But
individual States have their own Invasive Species Orders that they have
enacted and enforce with varying degrees of success. As is the trend
these days with most governmental actions, the perpetrators are not
the Legislatures but rather the unelected bureaucrats to whom the Legislatures
or the Chief Executives have delegated (read, abdicated) their authority.
In this case, the opening clause of the Michigan ISO has the MDNR announcing
its right to issue an administrative order affecting the lives of millions
of humans and animals.

The
Usual Suspects

Lurking
behind the scenes, of course, are the usual suspects – the lobbyists
and their bosses, the “concerned” competitors who only want
to do what is “right.” Amazingly, though, these competitors’
definition of “right” always seems to fall on the side of
what will enhance their profit margins. As Karl Marx once wrote, “There
is a direct connection between a person’s pocketbook and their
heart.” He may have been a rotten philosopher, but when it came
to this perceived link, Marx definitely had his finger on the pulse
of humanity.

With
the drop-dead date of April 1st (for enforcement of the ISO on pig farms)
staring them in the face, Mark Baker of Bakers Green Acres, appeared
in front of the Michigan Senate Agriculture Committee to ask that the
Senators rescind the MDNR’s Declaratory Ruling specifying the
characteristics of prohibited swine, arguing that the Ruling is both
biologically and scientifically unsound. Baker’s State Senator
had arranged this hearing; and, according to witnesses and the actions
that subsequently took place, Baker was evidently very convincing and
it seemed as if enough Senators would grant the requested rescission,
or at least a 90-day stay.[6]

In
a news release, Baker reiterated his arguments. “The DNR says
certain breeds of pigs must be banned because there are feral pigs in
Michigan,” said Baker. “My pigs, however, are not feral.
They are kept inside a fence and are under the care of my family. It
is impossible to genetically differentiate between swine, so the department
decided certain pigs will be banned due to their appearance. The characteristics
they outlined are ridiculous because all pigs have those traits. Honestly,
the entire thing seems like a bad April Fool’s joke, but unfortunately
for pig farmers like me, it’s not.”[7]

Not
to be outdone, the Big Pork industry lobbyists, representing the Michigan
Pork Producers Association, reportedly pulled Michigan State Senators
out into the hall for private meetings. It was not reported what passed
between the Senators and Big Pork’s representatives; but when
the Senate Committee reconvened, those “hallway” Senators
withdrew their support for Baker and his Senator. The ISO was confirmed
and went into effect on April 1, 2012.[8]
Big Money won again, using the coercive tools of government to obtain
by force what it could not win fairly in the free marketplace.

The
Fight Continues

Lawsuits
and other actions abound. Mark Baker and three other parties have retained
attorney Joseph O’Leary to carry forward their lawsuit against
the MDNR to stop that Agency from continuing to overstep its authority
by entering upon private property. At the same time, the MDNR has civil
suits pending against pig-farmer Ronald McKendrick and of course his
wife Charlene (using the old, pressure-the-wife-to-get-the-husband-to-cave
tactic) as well as an Upper Peninsula pig producer, asking the Court
to force them to “depopulate” their remaining prohibited
swine.[9]
Piling onto the fight are two on-line petitions to get the MDNR off
the backs of the small farmers.[10]

The
anti-MDNR petitioners have said it best: “Small family farms represent
the backbone of a local, sustainable food system. While huge industrial
farms dominate the market, small farms have been able to thrive by providing
high-quality food raised in environmentally healthy ways. This includes
livestock humanely raised on pasture.”[11]

The
MDNR is actively and dramatically expanding its reach from public lands
into farms and other private property. This is a wrongful and unconstitutional
breach of private-property rights, especially upon persons and their
livestock, neither of which have caused any harm whatsoever. There are
Federal remedies available to stop these blatant violations of the McKendricks’,
Baker’s, and others’ Constitutional rights and these injured
parties would be well-advised to investigate filing suits in Federal
court to remedy the wrongs done to them. Clearly, the MDNR has become
yet another rogue agency.

Small
farmers deserve every bit as much protection of their property rights
as do the big factory farmers, and it should be recognized especially
by a State charged with protecting the health of the public that those
farmers raising heritage breeds are helping to preserve genetic diversity
and hardier breeds. Just as importantly, they are providing more-ethically
raised meats and a real choice for consumers. These farmers, though,
are not to be supported in their legal battles simply because they are
small producers, they are worthy of support because they have been legally
wronged. Large or small, we should all be equally protected in our private-property
rights and anything less than equal protection under the law is an injustice.

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P.S.
ISO’s Real Promise

Ironically,
enterprising litigants and their attorneys might consider researching
the application of these ISOs, or variants thereof, as part of a legal
basis to launch novel challenges in the courts against Genetically Modified/Genetically
Engineered crops and seeds. “Food” crops such as Monsanto
corn, soy, and other altered grains are, after all, non-native and “invasive
species.” The owners of the patents will argue, naturally, that
these are the same species and that therefore there is no difference;
but if that were true, then it would completely undercut those same
owners’ arguments before the U.S. Patent and Trademark Office
that their patented crops are distinctive enough to deserve patent protection.
They cannot have it both ways. And just maybe, as with Boo Radley in
To Kill A Mockingbird, an ISO might surprise us and turn out
to be a good guy after all.

Scott
Tips received his Bachelor of Arts degree, magna cum laude, from the University
of California at Los Angeles in 1976, studied at the Sorbonne (Paris I)
from 1976-1977, and obtained his Juris Doctorate degree from the University
of California, Berkeley School of Law (Boalt Hall) in 1980, where he was
the Managing Editor of the California Law Review. A California-licensed
attorney, he has specialized in food-and-drug law and trademark law, but
also engages in business litigation, general business law, and nonprofit
organizations, with an international clientele.

Since
1989, Mr. Tips has been the General Counsel for the National Health Federation,
the World’s oldest health-freedom organization for consumers, and is now
its president. He also writes a regular column for NewsWithViews.com and
Whole Foods Magazine called Legal Tips, a column he started in 1984. Currently,
Mr. Tips is occupying much of his time with health-freedom issues involving
the Codex Alimentarius Commission and its and other attempts to limit
individual freedom of choice in health matters.

To
understand better the Codex Alimentarius Commission and the global food
standards and guidelines that it is creating, you must read Codex Alimentarius
– Global Food Imperialism. This book is a collection of articles by those
few health-freedom activists with first-hand knowledge of Codex and the
dangers that it poses to our health and health freedom. Compiled by Scott
Tips, this easy-to-read book can be purchased
here.

Small farmers deserve
every bit as much protection of their property rights as do the big factory
farmers, and it should be recognized especially by a State charged with
protecting the health of the public that those farmers raising heritage
breeds are helping to preserve genetic diversity and hardier breeds.